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  • Decisions of the United StatesCourt of International Trade

    Slip Op. 0765

    USEC INC. and UNITED STATES ENRICHMENT CORPORATION, Plain-tiffs, v. UNITED STATES, Defendant.

    Before: WALLACH, JudgeCourt Nos.: 0200112, 0200113, 0200114

    PUBLIC VERSION

    [Plaintiff s 56.2 Motion for Judgment on the Agency Record is Denied.]

    Dated: May 4, 2007

    Steptoe & Johnson LLP, (Eric C. Emerson, Sheldon E. Hochberg, and Evangeline D.Keenan) for Plaintiff USEC Inc. and United States Enrichment Corporation.

    Pillsbury Winthrop Shaw Pittman LLP, (Nancy A. Fischer, Joshua DennisonFitzhugh, Sanjay J. Mullick and Stephan E. Becker) for Plaintiff-Intervenor Ad HocUtilities Group.

    Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Michael D.Panzera and Stephen C. Tosini, Attorneys, Commercial Litigation Branch, Civil Divi-sion, United States Department of Justice, for Defendant United States.

    Fried, Frank, Harris, Shriver and Jacobson LLP, (Jay R. Kraemer and WilliamTaft) for Defendant-Intervenors Urenco, Inc., Urenco Ltd., Urenco DeutschlandGMBH, Urenco Capenhurst Ltd., and Urenco Nederland B.V.

    OPINION

    Wallach, Judge:

    IIntroduction

    Plaintiffs USEC Inc. and its wholly owned subsidiary UnitedStates Enrichment Corporation (collectively USEC) challenge thefinal antidumping and countervailing duty determination of theUnited States Department of Commerce (the Department or Com-merce) with regard to low enriched uranium (LEU) from Ger-many, the Netherlands, and the United Kingdom. This opinion con-siders antidumping issues, both general and country-specific.

    21

  • The administrative determination under review is the final deter-mination by Commerce of sales at not less than fair value (LTFV)with respect to LEU from Germany, the Netherlands, and theUnited Kingdom, covering the period of investigation (POI) fromOctober 1, 1999 through September 30, 2000, set forth in Notice ofFinal Determinations of Sales at Not Less Than Fair Value: Low En-riched Uranium From the United Kingdom, Germany, and the Neth-erlands, 66 Fed. Reg. 65,886 (December 21, 2001) (Final Determina-tion).

    This court exercises jurisdiction pursuant to 28 U.S.C. 1581(c).

    IIBackground

    This case comes before the court after consolidated decisions be-fore a three-judge panel, the Court of Appeals for the Federal Circuit(Federal Circuit) and several remands to the Department of Com-merce. USEC v. United States, 259 F. Supp. 2d 1310 (CIT 2003)(USEC I); USEC v. United States, 281 F. Supp. 2d 1334 (CIT 2003)(USEC II); Eurodif S.A. v. United States, 411 F.3d 1355 (Fed. Cir.2005) (Eurodif I); Eurodif S.A. v. United States, 423 F.3d 1275(Fed. Cir. 2005) (Eurodif II); Eurodif S.A. v. United States, 414 F.Supp. 2d 1263 (CIT 2006) (Eurodif III); Eurodif S.A. v. UnitedStates, 431 F. Supp. 2d 1351 (CIT 2006) (Eurodif IV); and EurodifS.A. v. United States, 442 F. Supp. 2d 1367 (CIT 2006) (Eurodif V).A brief review follows.

    On December 7, 2000, USEC petitioned Commerce to initiate anantidumping duty investigation on imports of LEU from Germany,the Netherlands, and the United Kingdom. In its Final Determina-tion, Commerce calculated zero percent margins for Germany andthe Netherlands and a de minimis margin for the United Kingdom.Final Determination, 66 Fed. Reg. at 65,888. The antidumping andcountervailing duty determination covered all LEU.1

    Urenco Ltd. (Urenco), the Defendant-Intervenor in these cases,is a holding company located in the United Kingdom, which holds100 percent of the stock in Urenco Deutschland GmbH (UD), lo-cated in Germany; Urenco (Capenhurst) Ltd. (UCL), located in theUnited Kingdom; Urenco Nederland B.V. (UN), located in theNetherlands; and Urenco Investments, Inc. Urenco Ltd. ownsUrenco, Inc., a Delaware corporation that acts as Urenco Ltd.s mar-keting arm and contracts representative in the United States,through Urenco Investments.

    1 LEU is enriched uranium hexafluoride (UF[6]) with a U product assay of less than

    20 percent that has not been converted into another chemical form, such as UO[2], or fabri-cated into nuclear fuel assemblies, regardless of the means by which the LEU is produced(including LEU produced through the down-blending of highly enriched uranium). Id. at65,887.

    22 CUSTOMS BULLETIN AND DECISIONS, VOL. 41, NO. 32, AUGUST 1, 2007

  • The parties challenges are now ripe for adjudication.2 In thecourts original Scheduling Order, the three judge panel decided, andthe parties agreed, to address initially general issues affecting theDepartments threshold determinations, to be followed later by case-specific issues, such as challenges to the Department of Commercescalculation results and methods. Scheduling Order at 6 (August 5,2002). The threshold issues were decided by the three-judge paneland the Federal Circuit in USEC I, USEC II, Eurodif I, Eurodif II,Eurodif III, Eurodif IV and Eurodif V.

    The Federal Circuit in both Eurodif I and Eurodif II held that theseparative work unit (SWU) contracts for uranium enrichmentthere at issue were contracts for services and therefore not subject tothe antidumping duty (AD) laws, and that 19 U.S.C. 1673 unam-biguously applies to sales of goods and not services.3 Eurodif I, 411F.3d at 136162; Eurodif II, 423 F.3d at 1276. The court in Eurodif Iheld that there was no transfer of title or ownership of the LEU fromthe utility to the enricher since the utility retains title to the quan-tity of the enriched uranium that it supplies to the enricher. EurodifI, 411 F.3d at 1360. Pursuant to the courts remand in Eurodif III,and as upheld by this court in Eurodif V, Commerces Final Resultsof Redetermination Pursuant to Court Remand (June 19, 2006) (Re-mand Redetermination) amended the scope language in the originalantidumping and countervailing duty order, thereby excluding ura-nium enrichment services contracts from the order. See Eurodif III,414 F. Supp. 2d at 1263; Eurodif V, 442 F. Supp. 2d at 1367; RemandRedetermination.4 Contracts for sales of LEU are unaffected by theprevious Eurodif cases, and remain within the scope of the anti-dumping duty order. At oral argument, the parties agreed that thecalculational issues related to enrichment services contracts in thesecase numbers are not mooted because Commerce, on remand in con-solidated court numbers 0200219 and 0200221, did not addressthese particular issues.

    Familiarity with the courts prior opinions is presumed.

    2 The arguments decided here were filed by the parties before the three-judge panel in20022003, prior to the Federal Circuit decisions in the Eurodif line of cases. Separate is-sues were assigned to each participant in that panel after general issues were decided.

    3 A SWU contract is a contract for a separative work unit, a measurement of theamount of energy or effort required to separate a given quantity of feed uranium into LEUand depleted uranium at specified assays. In these SWU contracts, the enricher enrichesthe unenriched uranium and delivers LEU to the purchaser. See, e.g., Eurodif I, 411 F.3d at1357; USEC v. United States, Slip Op. 03170, 2003 Ct. Intl Trade LEXIS 170, at *7 n.8(December 22, 2003).

    4 Following the Eurodif line of cases, contracts for the sale of LEU would still be includedwithin the ambit of the antidumping duty order. Urenco acknowledged at oral argumentthat a portion of the contract with [Utility A] involved a sale of LEU to a U.S. utility. Be-cause Commerce found a de minimis dumping margin for the United Kingdom, and a zeropercent margin for Germany and the Netherlands, this fact does not affect the calculationof Urencos dumping margin.

    U.S. COURT OF INTERNATIONAL TRADE 23

  • IIIStandard of Review

    In reviewing Commerces antidumping duty determinations, thecourt must sustain any determination, finding, or conclusion unlessit is unsupported by substantial evidence on the record or otherwisenot in accordance with law. 19 U.S.C. 1516a(b)(1)(B); Fujitsu Gen.Ltd. v. United States, 88 F.3d 1034, 1038 (Fed. Cir. 1996). Substan-tial evidence means such relevant evidence as a reasonable mindmight accept as adequate to support a conclusion. Consol. Edison v.NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938) (inter-nal citations omitted). The possibility of drawing two inconsistentconclusions from the same evidence does not mean that Commercesfindings are not supported by substantial evidence. Consolo v. Fed.Maritime Commn, 383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 131(1966).

    When reviewing the Departments construction of the antidump-ing statutes, the court first considers whether Congress has spokendirectly to the question at issue. Chevron U.S.A. v. Natural Res. Def.Council, Inc., 467 U.S. 837, 84243, 104 S. Ct. 2778, 81 L. Ed. 2d 694(1984). If Congress has addressed the issue, then the court must fol-low the expressed intent of Congress. Id. However, if the issue hasnot been addressed by Congress, the court does not simply imposeits own construction on the statute . . . [r]ather . . . the question forthe court is whether the agencys answer is based on a permissibleconstruction of the statute. Id. In its analysis, the court need notconclude that the agencys construction is the only permissible con-struction, or even the reading the court would have reached, in orderto find the agencys interpretation reasonable. Id. at 843 n.11 (citingFEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39,102 S. Ct. 38, 70 L. Ed. 2d 23 (1981)). [A] court must defer to anagencys reasonable interpretation of a statute even if the courtmight have preferred another. Koyo Seiko Co. v. United States, 36F.3d 1565, 1570 (Fed. Cir. 1994).

    To ascertain whether Congress has spoken on an issue, the courtconsiders the plain text of the statute, canons of statutory construc-tion, structure of the statute, an

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